KMK Law Real Estate Blog

In a decision that will affect many businesses with small emission sources, on February 2, 2010, a federal district magistrate for the U.S. District Court, in Sierra Club v. Christopher Korleski, Case No. 2:08-CV-865 (U.S. District Court, Ohio), ruled that Ohio’s New Source Review (NSR) exemption for minor emission sources was invalid.  This exemption allowed sources that emitted less than 10 tons per year of criteria air pollutants (particulate matter, carbon monoxide, sulfur dioxide, nitrogen dioxide, ozone, lead) to avoid the use of best available technology (BAT) to reduce air emissions.  The court determined the exemption was not part of the U.S. EPA-approved State Implementation Plan (SIP).  Consequently, the court found the BAT exemption for minor emission sources violated the federal Clean Air Act (CAA) and Ohio’s SIP, and that the statute authorizing the exemption was preempted by the CAA. 

The extent of the impact of this decision on business operations is not yet known, but it is likely that minor sources will be required to install BAT unless Ohio EPA amends the SIP to include this minor emission source exemption in a way that is approvable by U.S. EPA.

The court’s decision will likely affect current permittees and permit applicants.  Ohio EPA has not yet indicated whether it will appeal this decision, amend the SIP to include the BAT exemption, or require BAT for small emission sources.